The State of Haryana vs Shamsher Jang Shukla

Shamsher Bahadur, J.—This judgment will dispose of three regular second appeals, State of Haryana v. Shamsher Jang Shukla, (R.S.A.. No.357 of 1967), State of Punjab v. Rachhpal Singh (R.S.A. No. 359 of 1967) and State of Punjab v. Sucharan Singh (R.S.A. No. 418 of 1967), the common question involved in all of these being whether the rules of service can be amended by administrative instructions to include a qualification test for the promotion of clerks to Assistants? While the respondent in R.S.A. No. 357 of 1967, Shamsher Jang Shukla is an employee of the Civil Secretariat Haryana, Rachhpal Singh and Sucharan Singh, the respondents in the other two appeals, are employed in the Punjab Public Service Commission Patiala.

All the three respondents were initially appointed in the Patiala and East Punjab States Union and though it is not clear from the pleadings in the three cases that they were governed by the Pepsu Service Rules, this has been the basis of the arguments addressed on their behalf in the Courts below and also before us. According to the State Governments of Haryana and Punjab, these employees are governed after the integration of Punjab and Pepsu by the relevant Rules prevailing in Punjab. In the view we have taken, this matter would not be of much consequence as even according to the Punjab Rules the respondents, in our opinion, are entitled to succeed.

Shamsher Jang Shukla joined Government service as a clerk in the erstwhile Pepsu Secretariat on 3rd of January, 1955; Rachhpal Singh was appointed as a Routine Clerk in Pepsu Public Service Commission on 21st of January, 1953, while Sucharan Singh was appointed in a similar capacity in the same Department on 23rd of January 1953. Shukla was promoted as an Assistant on 9th of December, 1959 in the Punjab Civil Secretariat Chandigarh, while Rachhpal Singh and Sucharn Singh got promotions to this post on 4th of May, 1962. Owing to their failure to qualify the test, they were, however, reverted as clerks; Shukla on 3rd of February, 1960; Rachpal Singh on 5th of February, 1963 and Sucharan Singh on 1st of April, 1963. On their reversions three separate suits were brought by Shamsher Jang Shukla on 6th of November, 1965, Rachhpal Singh on 5th of November, 1965, and Sucharan Singh on 3rd of February, 1936. In all these cases, it was alleged that the failure to pass the test introduced by administrative instructions resulted in the orders of reversions. The first two suits were decreed by Mr. Mirchia, Subordinate Judge 1st Class, Patiala on 17th of June and 6th of July, 1966 respectively, while the third one was decreed on 3rd of August, 1963. The appeals preferred by the Punjab Government in each cases were dismissed by Mr. Fauja, Singh Gill, Additional District Judge, Patiala, those of Shamsher Jang Shukla and Rachhpal Singh on 26th November, 1966 and of Sucharan Singh on 7th of December, 1966. Shamsher Jang Shukla having been allotted to the Haryana State, the successor State of Haryana has preferred an appeal in his case while the State of Punjab is the appellant in the other two.

It has been stated at the Bar that there are many other appeals pending in this Court on the same questions but not being complete these have not been placed for disposal alongwith these three appeals which were heard together, the arguments in all the three being common.

The relevant Pepsu Rules called the Pepsu Secretariat Service Recruitment, Promotion, Punishment and Seniority Rules, 1952, are re-produced in the notification of the Rajpramukh issued on 13th of December, 1952, and in the matter of promotion from Clerk to assistant, rule 15, u/s IV, provides as follows:

Promotion from one grade of the Service to another shall be made:

(1) by selection of persons of outstanding ability33 1/2% and merits

(2) by seniority cum merit Recommendation for 66 1/2% promotions by selection will be made by a Committee comprising the Secretaries to Government from time to time:

Provided that cases in which seniority is ignored shall be referred to the Public Service Commission for concurrence.

Note:-Seniority-cum-merit means that a promotion will be ordinarily by seniority. The Government, however, reserves to themselves the right to supersede a person whose turn it is for promotion on the ground that he has not the merit required for filling up the post.

Under the States Reorganisation Act, 1953 (hereinafter called the Act), there was a merger of Punjab and Pepsu with effect from 1st of November, 1956. and letter No. 5010-Integ-57/1643 from the Secretary Integration was issued to all heads of departments on 26th of July, 1957, to the following effect:

I am directed to address you on the subject noted above and to say that in supersession of all previous instructions it has now been decided that the method of recruitment and promotion contained in the various service rules do not constitute the conditions of service. I am, therefore, to request you that all recruitment and promotions in the New State may be regulated, in accordance with the relevant rules of recruitment and promotion, on erstwhile Punjab norm.

There is another letter from the Integration Secretary issued to all Heads of Departments on 10th/14th May, 1958, in which also it is stated that "the recruitment and promotion rules, on erstwhile Punjab norm, will apply uniformly as from 1st November, 1956."

The relevant Punjab Rules on the subject are the Punjab Civil Secretariat (State Service Class III) Rules, 1952, rules 5 and 6 of which say that : -

No person shall be appointed substantively to the Service unless he possesses the educational and other qualifications mentioned below:

Post to which the person is designed to be appointed

Minimum educational qualifications

Other qualifications

(a)

...

...

(b)

...

...

(c) Assistant

If appointed direct a degree of a recognized University or its equivalent

Qualifies in a departmental test conducted by Assistant Secretary/Chief Secretary

(1) Posts in the Service shall be filled:

(a) ....

(b) ....

(c)....

(d)....

(e)....

(f) in tie case of Assistants -

(i) by direct appointment; or

(ii) by promotion of Senior Clerks; or

(iii) by selection from among officials employed in departments of Government other than the Civil Secretariat.

* * *

(2)....

(3) Appointment to any post by the promotion of officials already in the service or by transfer of officials employed in Government departments other than the Civil Secretariat shall be made strictly by selection, and no official shall have any claim to such appointment as of right.

On 21st of June, 1958, an order containing some instructions was passed under the signatures of Mr. E.N. Mangat Rai, Chief Secretary to Government Punjab (Exhibit P. 4 in Shukla''s case) stating inter alia that 25 per cent vacancies in the cadre of Assistants in the Punjab Civil Secretariat will be filled by appointment of suitable personal from serving officials in the offices of the Heads of Departments in the State, while, the remaining 75 per cent will be filled by promotion from amongst the clerks in the Punjab Civil Secretariat. Under clause (b) of this order:

For the purpose of appointment of officials from the offices of Heads of Departments as Assistants in the Punjab Civil Secretariat as also for promotion of Clerks of the Secretariat to the posts of Assistants in the cadre, a test separately prescribed will be held by the Punjab Public Service Commission, For officials belonging to the offices of the Heads of Departments, this test will be a competitive one and for the Secretariat Clerks it will be a qualifying test. As at present this test will be conducted simultaneously in accounts as also in Noting and Drafting. The question as to what standard of accounts test it would be fair to expect of the examinees is being considered separately." Such tests which were to be held twice a year "would not disturb the inter se seniority of officials who came out successful", but a person who did not attain the minimum prescribed standard of 50 per cent marks was granted provisional promotion subject to the condition that he qualified in the Accounts paper in the next test by getting at least 331/3 marks and also making his aggregate equal to 50 par cent marks. Only by acquiring this merit could a person be restored his original seniority.

By an order of the Chief Secretary passed on 9th of December 1959 (Exhibit P 6) Shamsher Jang Shukla and some other clerks were promoted as Assistants but this, promotion according to the order, "would be temporary until the list of qualified candidates is received from the Punjab Public Service Commission, subject to the condition" that he would be liable to reversion if he did not qualify and any of his juniors did. Shamsher Jang Shukla not having qualified was reverted to the Position of a clerk on 3rd of February, 1966 along with many other persons who had been likewise promoted. It is not necessary to mention the dates of the promotions and reversions of the other two officials in the remaining two appeals as it is common ground that they were also reverted for a similar reasons viz failure to qualify in the test.

In the appeals which have been very ably argued by both sides before us, it has been contended by Mr. Gupta, the Learned Counsel representing the Haryana State, who has addressed the main arguments on behalf of the appellants in the three appeals that the promotion, according to the Punjab Rules, involved a process of selection and the Government was within its tights to introduce a qualifying test to lay down an objective standard in making an order or promotion. It is pointed out that the order of promotion was conditional and reversions have entailed for the non compliance of the express stipulation to pass this qualifying test. It is further submitted that the administrative instructions had been broadly approved by the Central Government under the proviso to sub-section (7) of section 115 of the Act which is to this effect:

Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) or subsection (2) shall not be varied to this disadvantage except with the previous approval of the Central Government.

Under sub-section (1) of section 115 are included persons'' serving in connection with the affairs of any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra'' Reference has been invited to an official memorandum of 11th of May, 1957, addressed by the Special Secretary to the Central Government in the State Reorganisation Department (Exhibit P. 9). Under the heading of "Dearness Pay" it is stated in paragraph 3 of this memorandum that:

It will be recalled that at the December Conference of State representatives... the question whether any protection should be given in respect of rules and conditions applicable to Government servants affected by reorganisation immediately before the date of reorganisation in the matter of travelling allowance, discipline control, classification, appeal, conduct probation and departmental promotion was also considered. The Government of India agree with the view expressed on behalf of the State representatives that it would not be appropriate to provide for any protection in the matter of these conditions.

All that can legitimately be argued from this general instruction is that the Government of India had agreed that the Punjab norm should be accepted and the Punjab Rules hereafter will govern the service conditions of the employees. This instruction however could not be sought in aid of the wider proposition that the service rules could be changed or amended without an appropriate procedure contemplated under Article 309 of the Constitution. Indeed, the Supreme Court decision in N. Raghavendra Rao Vs. Deputy Commissioner, South Kanara, Mangalore, , relied upon by the State Counsel, makes it clear that the Central Government memorandum referred to above could only amount to a previous Approval within the proviso to section 115(7) to the making of rules under Article 309. A blanket protection or umbrella for administrative instructions cannot be spelled out from this memorandum. Mr. Justice Sikri, in dealing with the argument of the counsel that the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1939, as framed had not been sent to the Central Government before being promulgated, observed that the memorandum referred to above constituted previous approval for the rules which had been duly promulgated by the Mysore Government under Article 309. The learned Judge observed at page 138:

In our opinion, the setting in which the proviso to Section 115 (7) is placed, the expression ''previous approval'' would include a general approval to the variation in the conditions of Service within certain limits, indicated by the Union Government. It has to be remembered that Article 309 of the Constitution gives, subject to the provisons of the Constitution, full powers to a State Government to make rules. The proviso to section 115 (7) limits that power, but that limitation is removable by the Central Government by giving its previous approval.

In other words, if the administrative instructions with regard to the test had been promulgated in the form of a statutory rule under Article 309, the memorandum of the Government of India of 11th of May, 1957, would have been deemed to be previous approval under the proviso to section 115(7) of the Act to make it valid even though this amendment had brought about a change to the detriment of the employees. It may be mentioned in passing that the State Government had been alive to this situation as some Service Rales have been amended'', and by way of illustration our attention has been invited to Punjab Financial Commissioner''s Officer (State Service Class III) Rules, 1957, which were amended in accordance with the proviso to Article 309 of the Constitution to introduce a test qualifying a clerk for promotion to the post of Assistant.

It is common ground that no statutory rule under Article 309 has been made to introduce the test for promotion of clerks to the posts of Assistant. While it is strongly contended on behalf of the respondents that the Government of India resolutely declined to give effect to the specific proposal embodied in the departmental instructions by producing an unproved letter of the Deputy Secretary to Government of India, for which the claim for privilege had been upheld by the Courts below, it is submitted on behalf of the appellants States that the suits brought by the plaintiff respondents have prevented the Governments concerned from pursuing the matter further. Be that as it may we are confronted with the situation that the test which the plaintiffs-respondents failed to qualify was introduced in pursuance of administrative instructions and not through any amendments in the statutory rules under Article 309.

The next question which arises for determination is whether the language of rules 5 and 6 justify the submission of the state counsel that the test is only a way of determining whether a clerk is suitable for selection to the appointment of an Assistant. The other qualification mentioned against the post of Assistant recruited directly under rule 5 is a departmental test conducted by the Assistant Secretary or the Chief Secretary, but it is pointed out by the counsel for the respondents that such a test is only contemplated for substantive appointments of Assistants recruited directly and not for Clerks promoted as Assistants. Mr. Pannu has contended that the respondents had all been officiating in their appointments when they were reverted to their substantive posts of clerks. To avoid an innuendo of incompetence or inability, Mr. Pannu has submitted that the respondents and many other employees, who have taken a similar stand have not chosen to submit to the test because it used to be conducted previously through the agency of the Subordinate Services Selection Board which exercised favoritism in declaring the results. This is again a matter with which we are not concerned in these appeals and it has to be seen whether the introduction of a test could be made through administrative instruction issued by the Chief Secretary ? In a Division Bench Judgment of this Court in Joginder Singh Grewal v. The State of Punjab C.W. No. 1968 of 1965, decided by Chief Justice Mehar Singh and Mahajan J. on 19th July, 1966, it was observed that it was not open to the Government by executive instruction to add anything to the Service Rules by way of prescribing the minimum academic qualifications for the post of Deputy Director (Agriculture). No such minimum qualification was prescribed in the service rules and in the judgment of the Division Bench the Executive Government could not amend or alter these rules to add to the minimum qualifications for the post of the Deputy Director (Agriculture). To the similar effect is the Division Bench judgment of Narula J. and myself in Mrs. J.K. Pritam Singh v. The State of Punjab 1967 S.L.R. 251 in which it was held at page 273 that even in matters of promotion the Punjab Government" could not amend or alter the existing rules or even add to them by an executive order so as to exclude from consideration for promotion to the higher scale the J.S.T. teachers who would have been entitled to be considered for such promotion except for the impugned executive order."

It is next contended that if the Service Rules are silent on a particular point, the gap or lacuna could be filled by administrative instructions. It is argued that selection being the test of promotion and no means of selection having been prescribed in the rules it was within the competence of the Executive Government to say that the employees'' promotion would be conditional on passing a test. Mr. Gupta has brought to our notice the recent decision of the Supreme Court in Sant Ram Sharma Vs. State of Rajasthan and Another, . Sari Sant Sant Ram Sharma in a petition under Article 32 of the Constitution questioned the selection of his junior to the post of Inspector-General of Police, Rajasthan. In a passage at page 6 of the blue-print of this judgment and page 1914 of the report, Mr. Justice Ramaswami, speaking for the Court, observed as follows:

We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersed statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.

It is to be borne in mind that their Lordships of the Supreme Court were concerned with appointments to selection grade posts while in the instant case we are dealing with the appointments of clerks as Assistants which is really the first promotion in the clerical grade. We do not think that the principle approved by the Supreme Court is applicable to the promotion of clerks and can be invoked in aid of the State Government''s contention that the Chief Secretary''s instructions were merely providing a gap which had been left in the Service Rules. In fact, it seems to as that the principle adopted by the Supreme Court in P.C. Wadhwa Vs. Union of India (UOI) and Another, is more opposite to the facts of this case then the one in P.C. Wadhwa Vs. Union of India (UOI) and Another, it is a case of first promotion though in the clerical grade from the position of a clerk to that of an Assistant and unless the rules so specifically provide the test envisaged in the administrative instructions could not be regarded as an essential prerequisite for such promotion.

The Learned Counsel for the State has cited certain authorities for the proposition that promotion could not be demanded as a matter of right and promotion is essentially an administrative selection based on administrative principles. Promotions for the respondents have not been withheld on any administrative grounds or principles or that the records of the employees were found to be unsatisfactory. The respondents have in the fact been reverted merely on the ground that they have not passed the test which they were required to go through under administrative instructions. Nor is there much force in the contention of the Learned Counsel for the appellants that the reversions having taken place in terms of the promotion orders themselves, which contained condition of passing the test, have become unchallengeable. The conditions imposed for the promotion are based on administrative instructions which do not derive sustenance from any statutory rule. We do not think that the conditional order of promotion is in any way comparable to the position in The State of Bombay Vs. F.A. Abraham, , where a person was allowed to officiate in a higher post on account of the absence of the permanent incumbent and his reversion was held not to be a reduction in rank for it was the very term on which he had been given the officiating post. Not can it be said, as observed by Mr. Justice Sarkar in The State of Bombay Vs. F.A. Abraham, that the respondents were given officiating posts to test their suitability to make them permanent later. It cannot, therefore, be said that it was an implied term of the respondents'' Appointments as Assistants that if they were found unsuitable they had to go back.

There is nothing much to commend itself in the argument of the Learned Counsel for the State of Haryana and Punjab that the respondents not having held the posts of Assistants substantively cannot be said to hove been reduced in rank The plaintiff-respondents have been denied their promotions and it is not contested that their juniors have been appointed as Assistants on the ground that they have and the respondents have not passed the test which has been introduced in the statutory rules by way of administrative instructions.

In our opinion the test has introduced a condition of service after 1st of November, 1956, and this condition is to the manifest detriment of the Pepsu employees for certain and possibly also of the personel belonging to Punjab. Some of the appeals pending in this Court on this point relate to Punjab employees as well. In this situation, it seems to us that no enforceable rule can be said to have been framed within the meaning of proviso to sub-section (7) of section 115 of the Act to justify the orders of reversion.

These appeals therefore, must be dismissed, but as difficult points have been raised in these appeals, we would make no order as to costs.

S.B. Capoor, J.

I have had the advantage of reading the judgment proposed to be delivered by my learned brother in these three second appeals. With one qualification which will be mentioned below, I am in general agreement with his conclusions.

I think it necessary to appoint out that the three suits giving rise to these second appeals were very in efficiently conducted by the plaintiffs as well as the defendant State of Haryana in R.S.A. 357 of 1967 and Punjab State in R.S As 359 and 418 of 1967. The pleadings as well as the written statements lacked in detail and the attention of the trial Court does not appear to have been drawn to certain documents placed, on record by the defendant. So for far as the appellate Court, that is, Sari Fauja Singh Gill, Additional District Judge, is concerned, he seems to have thought that the judgment of this Court in R.S.A 892 of 1964 State of Punjab v. Harnam Singh really settled the appeals before him and he also did not apply his mind to the question whether the documents placed on record of the present suits could be of any consequence.

As pointed out by my learned brother, the plaintiffs in these suits giving rise to the second appeals were employees of "Pepsu'''' (Pat-iala and East Punjab States Union) and they were taken on by the reorganised Punjab State as a result of the coming into force of the States Reorganization Act, 1966, in consequence of which there was merger of the States of Punjab and Pepsu with effect from 1st November, 1966. So far as these employees are concerned, they are, as pointed out by Shamsher Bahadur, J. in his judgment, governed by the Pepsu Secretariat Service Recruitment Promotion, Punishment and Seniority Rules, 1952, unless otherwise provided either by any directive issued by the Central Government under the provisions of State Reorganization Act, 1956, or by any Service Rules made subsequent to the merger by the Governor of Punjab under Article 309 of the Constitution of India. No such positive statutory directive or rule in modification of the Pepsu Secretariat Service Recruitment, Promotion, Punishment and Seniority Rules, 1952, which would justify the reversion of the plaintiff-respondents from the posts of Assistants to those of Clerks, has been brought to our notice. It is not stated that while they were officiating as Assistants, their work was not satisfactory or had been adversely commented upon by their superiors and accordingly denial of promotions to them merely on the basis that they failed to pass the Assistant''s examination; which is not provided for in the Pepsu Rules applicable to them cannot be upheld only on the ground of administrative instructions.

I would, in the circumstances, refrain from expressing any view whether the administrative instructions upon which the defendants relied can be enforced qua the employees of the erstwhile Punjab State before its merger with Pepsu, and would leave this question to be considered by the Bench dealing with appeals on this point relating to such employees.

So far as the three appeals before this Bench are concerned, I agree with my learned brother that these be dismissed, but without any order as to costs.

FINAL ORDER OF DIVISION BENCH

S.B. Capoor and Shamsher Bahadur, JJ. (14th December, 1967)

In view of the Bench decision, the three R.S.As (R.S.A. 359, 418 and 357 of 1967) are dismissed but without any order as to costs.